The somewhat foreboding term "expropriation" in Canada
describes the right of the government (the Crown or one of its agencies)
to legally I take real property (land), that is in private hands and
apply it for a greater public use or benefit. This concept is called
"compulsory purchase" in the United Kingdom, and
"taking" or "condemnation" under the power of
"eminent domain" in the United States.

All land in Canada started off belonging to the Crown. The
government did not need all the land and could not possibly have managed
all of it. Large tracts were surveyed and then sold to private parties
to live on, building structures on and otherwise I turn into productive
uses. Sometimes, after this transfer to private ownership, the
government discovers that some of the land it earlier sold to private
parties it now needs to get back for the public good. These important
public uses that come up (and require access to privately owned land)
include the construction or expansion of highways, water and other
public utility systems, schools, transportation systems such as rail
tracks, airports and light rail in cities, pipelines, parks or even to
expand municipal boundaries. At all levels, governments require the
power to expropriate private land. Expropriation laws mediate the
inevitable conflicts between private real property rights and the public
need for that same land, following clear step-by-step processes.

Statutory, But Not Constitutional, Protection

This government acquisition of land without the owner's
consent is not subject to the Canadian Charter of Rights and Freedoms simply because there is no constitutional right for Canadians to own
property. This is not to say that there are no rights to due process or
administrative fairness when the government asks to take land. It merely
means that the landowner's rights are found in the expropriation
legislation and not in the Charter. The government must follow the law
as to what land may be expropriated and must observe the procedures set
out in the legislation that generally serve to protect the private
landowner.

While the federal government can expropriate land, (Expropriation
Act, RSC 1985) most expropriations come under provincial legislation.
Each province has applicable legislation.

In Canada, there was once a common law basis for expropriation
without legislative oversight. The procedure for government to take land
and to determine the compensation payable evolved with economic and
social conditions. But many would say that it did not evolve fast enough
in favour of the landowner. The 1959 case of Grayson v. R. ([1956-60]
Ex. C.R. 331) defined Canada as one of the most arbitrary jurisdictions
of land expropriation in the developed world.

This changed with the introduction of the Ontario Expropriations
Act (S.O. 1968-69 c.36) in 1968, which would later serve as the model
for new federal legislation and other provincial legislation. The
Ontario legislation added clarity by removing subjectivity and
arbitrariness. It provided a complete expropriation code. Today, the law
of expropriation is found in legislation and the judicial decisions that
interpret those statutes. The right of government to expropriate, and
how it can do so, must be found in legislation as it will no longer be
implied.

Procedural Fairness

Given the obvious imbalance in power between landowner and
government, the legislation provides numerous procedural safeguards that
favour the owner in the expropriation process. These include the rights:

* to be notified of the expropriation;

* to be notified of all steps being taken by the government in the
process;

* to challenge the expropriation; and

* to representation by a lawyer in that process. Reasonable legal
fees are usually reimbursed to the landowner.

If landowners are not content with the expropriator's initial
proposals, they have the right to:

* a formal offer of compensation;

* a record of appraisal;

* negotiate the compensation; and ultimately

* a public hearing or inquiry procedure before an independent
administrative tribunal.

If an expropriating authority does not fulfil the procedural
requirements set out in the expropriation legislation, it will be found
to have acted without authority. The expropriation can be invalidated
and the property owner will be able to bring an action for damages or an
injunction against the authority.

If there is any uncertainty or confusion in the legislation about
what the expropriating government can do, that ambiguity will be
construed and settled in favour of the landowner (Toronto Area Transit
Operating Authority v. Dell Holdings Ltd., 1997 CanLII 400 (SCC), [1997]
1 SCR 32). The burden of proof in the expropriation process is usually
on the expropriating authority.

Public Purpose and Fair Compensation

While the power of expropriation is generally held by the
government, the power may be delegated to ministries, government
agencies, railway or pipeline companies and public utility-type
corporations. Expropriation legislation sets qualifying conditions for
expropriations and the procedures that must be followed.

The government cannot take land as a punishment to the owner or on
other political, unreasonable or capricious grounds. The land must be
needed for a clear public purpose. Once that threshold has been met,
much of the process turns to the determination of fair compensation for
the landowner. The method to assess compensation varies across provinces
but generally a "value to the owner" approach is applied in
Prince Edward Island, Quebec and Saskatchewan. The "market
value" approach is used in some form in the other provinces and
territories. However, the two approaches will yield similar results, as
the objective is to restore the owners to the same position as they were
in before the expropriation.

Most expropriation legislation now includes a "home for
home" provision to allow forfeited land to be swapped for
equivalent replacement property. Other factors which may be considered
in arriving at compensation include:

* injurious affection (loss to adjoining property as a result of
the expropriation);

* disturbance damages;

* loss of business or the capacity to use the property for such
purposes; and

* special circumstances such as difficulty relocating or special
value of the property based on the purposes for which it is currently
being put to use.

Comparison with American Expropriation Law

Under the Fifth Amendment of the American Constitution, no private
property may be taken for public use without just compensation and
without the due process of law. As it turns out, these operate in
similar fashion to Canadian procedures. Canadian landowners enjoy an
array of procedural safeguards to challenge an expropriation and
ultimately receive fair compensation under ordinary expropriation
legislation. There are no parallel constitutional protections because
fair, modern and comprehensive legislation in Canada renders Charter
protections unnecessary.

Conclusion

Today the expropriation of private land continues to have major
political challenges. Governments want to limit expropriations, and
approach them carefully and sensitively so as not to be perceived as
being unfair or abusive in any way. That is why, in the vast majority of
cases, there are quiet, collaborative and generous negotiations and
offers on the part of the public authority behind the scenes in an
expropriation. Accordingly, the strict formal steps in the process,
including a public hearing, are rarely needed. By far, most
expropriations have happy, or at least satisfactory, resolutions on both
sides when they are negotiated in good faith in the shadow of the
legislative framework.

Peter Bowal is a Professor of Law at the Haskayne School of
Business, University of Calgary, in Calgary, Alberta and Rohan Somers
obtained his BA in Communications from the University of Calgary in
2012.

COPYRIGHT 2013 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.